Playing Dirty: A Tale of False Charges

“When pigs fly, wrongful convictions will be dust in the wind.”

Too cynical? Perhaps.

The story I’m about to tell you will shock some, but not those who follow wrongful convictions. Hopefully, it will shed some light on the precarious dance between a media who wants “its dirt” and law enforcement who wants “its perp.”

How much does a desire to “solve” social problems or make a political mark dictate the outcome of an investigation or trial? What’s the cost?

Criminal investigations and trials take place in the context of the social, political, and economic conditions of the time. In theory, criminal investigations and trials involve an objective pursuit of the truth, but in practice there are many subjective factors that influence the course of events.

MacFarlane goes on to examine “more fundamental-and less visible–environmental or “predisposing” circumstances” in the matter of wrongful convictions:

These predisposing circumstances are often below the criminal justice system’s radar screen, and for that reason they are much more difficult to deal with. Typically, they can be found within one or more of the following institutional or social contexts, or a combination of them:

a) public and media pressure on law enforcement agencies to solve a crime and successfully prosecute the perpetrator …;

b) cases where the public reacts to the background or circumstances surrounding the alleged offender, especially when he or she is perceived as being an “outsider” …;

c) so-called “noble cause corruption,” which for our purposes may be described as an ends-based culture that encourages investigators to blind themselves to their own inappropriate conduct …; and

d) an investigative environment that allows if not encourage the provision and acceptance of pre-analysis and pre-decision-making information that may be irrelevant, speculative, incomplete, out of context, or simply wrong.

With this in mind, let me be clear. This article isn’t about mudslinging the media or law enforcement, necessarily, but it should come as a dire warning to us all. Wrongful convictions will continue to happen if we let these institutions run amok as we all lie patiently waiting for those wily pink ears to take flight.

It is of crucial importance to note that prior to, during and after the trial of Nyki Kish, all of the points cited above were factors that contributed to her wrongful conviction and her continued plight of fighting gross misconceptions about her life and character.

Wrongful convictions will continue to bring irrefutable chaos and hardship to innocent lives, infringing on our rights to public justice and fair trials.

Wanted Poster: Nyki Kish (A parody by Lissa Robinson)

In my most recent article, I discuss the negative role of the media in the case of Nyki Kish. However, as I feared, there is much more to divulge in this troubling tale, which speaks directly to the “noble cause corruption” and the acceptance of information that is “irrelevant, speculative, incomplete, out of context, or simply wrong.”

When the media began reporting on Nyki’s appeal set for October of this year, her supporters were ready for the media jingles (rah rah ‘panhandler killer’) and the public hostility typically aimed at a person convicted of murder.

Many of her supporters posted comments on articles (Toronto Star, CBC and Sun News) in an effort to counter the errors of facts and her negative portrayal in the media. One afternoon, while arguing about Nyki not having a violent past, I was confronted by an ‘assault charge’ reported in 2007. I was stunned and confused.

Luckily, I was able to follow this report up with very reliable sources. What I found was a disturbing pattern of lateral violence in the media and law enforcement. The goal, it seems, was not to report the news factually, but to publicize a false charge that would help portray Nyki as a violent and repeat offender — possibly done in anger and also in an attempt to cast more aspersions about her purported guilt and “shady” character.

On the day cited above, this is what I found (please note the use of “alleged.” This term was likely used to avoid culpability in reporting a false, or rather ABSURD, charge.):

Where did the “tip” about this bogus charge come from?

After more digging, I then discovered an article in The Globe and Mail with more questionable details and equipped with another salacious headliner:

What are we to make of this? Quoted in the article, Kish’s lawyer seems equally angered and confused by the charge, its timing and how it made its way into the media:

Outside of court yesterday, Mr. Scarfe said he wants to know why police waited until after Ms. Kish had been charged in Mr. Hammond’s death, and her identity publicized in the media, to ask the victim in this case to identify her.

“If an allegation like this is raised, why does it take two-and-a-half, almost three months in order to put a lineup in front of this lady to see if she can recognize her?”

Unbelievable! Equally curious is this bit:

Bail hearings are subject to publication bans, but police information filed with the court alleges that, in the early hours of July 20, an unidentified 55-year-old woman walking near the intersection of Queen Street and Spadina Avenue sought to pat Ms. Kish’s dog.

How convenient.

Why is this so damning to the forces at work here? Because, that charge was a blatant lie. Not only did Kish NOT fit the description of the assailant, but on both days (yes, both days), Kish had solid and very detailed alibis for where she was, who she was with and what she was doing. Here is what Nyki’s mom, Christine Bivens had to say about the news story on the purported charge:

Big story, the panhandler who killed a tourist also attacked an old women, could children and kitties be far behind?

Well said, Ms. Bivens, well said. MacFarlane cites many cases where police corruption played a big role in the wrongful convictions of innocent defendants, and then also goes on to discuss the effects of “tunnel vision in the criminal justice system:”

A fitting cartoon I found in an article at ground report – “Amanda Knox, Mignini, witchcraft and tunnel vision – a postscript”

“A. What is tunnel vision?

As noted earlier, the first systematic research on miscarriages of justice was published in 1932 by Professor Edwin M. Borchard at Yale University. In his classic work, Borchard examined the principal causes of wrongful conviction and, for the first time, suggested the existence of a link between public pressure to solve horrific crimes and the “pinning” of responsibility on a certain suspect …”

So, in the case of Nyki Kish, how much of the investigation was done in bad faith and how much is to be attributed to the environment in Toronto in which law enforcement was pressured by the public to stamp out “panhandlers?” Or does it matter? I think it does. These are questions that we must continue to ask with respect to wrongful convictions in Canada (and elsewhere). As time goes by, I am confident that more details about the misapplications and misrepresentations of the media and law enforcement used in the case of Nyki Kish will ultimately be revealed, and with some diligent work, publicly condemned.

I will leave the following news report on the officer who made the assault charge cited above on Nyki Kish for your own contemplation:

A Toronto cop’s threat to Taser suspects’ testicles was condemned as “disgraceful, unacceptable and shocking” Monday by a Toronto Police spokesman.

The video, released by a Justice Hugh Fraser, shows Const. Christopher Hominuk profanely vowing to Taser two handcuffed prisoners in the rear of police cruisers on May 24, 2010.

“This officer’s actions are disgraceful, completely unacceptable and shocking,” said police spokesman Mark Pugash. “One of the reasons we had these in-car cameras installed was the protection of both officers and the public.

“We could identify the frivolous complaints and the serious ones as we did in this case and followed it up with an investigation by professional standards, which led to this charge,” added Pugash.

Hominuk, 37, pleaded guilty last Monday to one count of threatening bodily harm in the west Toronto incident. He’ll be sentenced in June and has been suspended with pay since he was charged last June.”

I would love to read your comments — so please, just hit the comment link and talk away. Thank you!

It just seems to be so easy to create evidence that suits the purpose of the investigator in this or any other case. I doubt the average ‘beat cop’ would be able to pull this off without supervision from a superior. There are too many cases that clearly show a lack of training by police and prosecutors are just to overworked to have their cases thrown out because the evidence was/is shoddy at best. Maybe it’s just easier to be a criminal with a uniform.

We all know by now that the media isn’t about the truth anymore… with so many stations and networks facing lower ratings and declining ad revenue, it only goes to motive. The more outrageous, bloody, despicable the story or the ‘crime’ the more attention these ‘news stations’ get, the more ad revenue is generated.

Indeed. The charge never transpired from what I can tell because it was baseless. But that someone could charge something and then perpetuate it in the media before it stood before the judge is a whole other disturbing reality. My question: (and the answer is obvious) who tipped off the media and why? We know the answer to that one as well. I am completely okay with transparency in public trials, but not when it gets abused by the law enforcement or the media!

Sadly this is becoming a routine reality, particularly in high-profile cases, and it goes by because many members of the public are gullible and more swayed by easy, primitive emotion than by dispassionate intelligent analysis. The brazen blatancy of so much media distortion and slander of defendants indicates a confidence that so many people are intellectually lazy and morally unsophisticated. Very disturbing reflection on how the “modern” human species is evolving – downward.

Isn’t it though? The media distortion is one thing, but I am beginning to wonder more and more just how much law enforcement or prosecutors are intentionally using the media. What I realized from doing this research is that it gets done behind the scenes. When I came across the first two articles about this “false” charge, I had no real reason to believe they were “false” except that I knew more about the case than what was being distributed in the media. I “knew” something was off about what I was reading. Thankfully, I had the sources. But, what galls me, is that I think some law people are using the media this way purposefully to manipulate the public and due process. HUGE red flags for me. I kind of suspected it, but this proved it to me without a doubt!

I’d heard about this story from a friend in the USA. He, as I, were skeptical about the girls innocence, at first. But when we looked at the trial transcripts, we were both pretty much aghast at the rediculous, unwarranted, unsubstantiated conclusions the judge made. I have to wonder at it all. Over time I’ve tried to keep my impartiality and observe events on a general level. There seems to be a kind of deterioration in systems and institutions, though there could be many things to account for it. You have these different motto’s that are bandied about, like “the ends justify the means” and you wonder if anyone’s considered what the “ends” should be. Sometimes I get the impression that the system gets confused as to what “ends” are. For them it might be, as suggested earlier in your article, the quelling of the masses. Or, in some instances, satisfying them to gain votes. Fame. Fortune. But justice? Justice may inflame the masses. In this case, I’d hope it would, for any potential Nyki in the future, and to get recompense for her when this mess gets straightened out. Shouldn’t those responsible also be meeted out some justice? It’s often touted as the great discourager. But will they get held over the barrel?

“Sometimes I get the impression that the system gets confused as to what “ends” are.”

That seems to be the crux of it all right. And I think it is various “ends” or a combination of many. I would highly recommend reading Justice MacFarlane’s paper if you have time. I am not convinced, yet, that there is an increase in wrongful convictions, but that more of us are standing up against them, and that the internet gives people more opportunity to explore cases in more detail, discuss cases and use social media as a way to fight against wrongful convictions.

I do hope that those who cause this type of harm within the legal system are punished. But so far, it is because they are not that this pattern of accusing and conviction innocent people carries on. Did you see the article about the ex-prosecutor now judge in Texas that was charged for putting an innocent man away for 25 years? All he got was 10 days in jail, 500 hours of community service and lost his license. He will still get to collect his pension — a pension that would have been aided by a wrongful conviction that likely advanced him in his career. Very pathetic, and does not properly punish him for the crime. I mean, Michael Morton, lost 25 years of his life behind bars. It’s an atrocity just like the many other wrongful convictions. I think that Canada does have more checks and balances that reduces wrongful convictions, but they still happen here as we can see from Nyki Kish’s case.

And YES, they should get held over a barrel, so to speak. If more of these people were charged appropriately for their crimes, then I suspect a lot less of them would take short cuts or do devious things to get their career-making convictions.

I have never been able to find the trial transcripts. They were at one time very expensive and took a long time to produce. I would be ever so interested In reading them. Also Faith Watts I did read where she was interrogated and not by choice of her own. She was reluctant and evasive. Somehow they disappeared as well. Corrupt Media for sure. Look at the USA that has a President In power only by the power of corrupt media.

[…] "When pigs fly, wrongful convictions will be dust in the wind. Too cynical? Perhaps. The story I'm about to tell you will shock some, but not those who follow wrongful convictions. Hopefully, it wi… […]

[…] "When pigs fly, wrongful convictions will be dust in the wind. Too cynical? Perhaps. The story I'm about to tell you will shock some, but not those who follow wrongful convictions. Hopefully, it wi… […]